Courts, states put death penalty on life support

Update: Since this story was originally published, Frazier Glenn Cross has been sentenced to death. The death penalty is being sought for Dylann Roof in South Carolina. Richard Glossip, who was to be executed Sept. 30, got a last-minute stay from Oklahoma Gov. Mary Fallin.

MIDLAND, Texas - If there is such a thing as a lock for the death penalty, the case against Daniel Higgins appeared to be just that.

Already sought for sexually assaulting a child, Higgins killed Sheriff's Sgt. Michael Naylor last October with a point-blank shot to the head, making him the only deputy slain in the department's 130-year history. "I wanted him dead," Sheriff Gary Painter says of the murderer.

But Naylor's widow, Denise Davis, said she couldn't bear the likely rounds of appeals that could stretch on for decades. Higgins was allowed to plead guilty and was sentenced to life without the possibility of parole.

The death penalty in America may be living on borrowed time.

A portrait of Sgt. Michael Naylor hangs in the William Ahders Justice Center that houses the Sheriff's Department in Midland, Texas.(Photo: James Durbin for USA TODAY)

The emotional and financial toll of prosecuting a single capital case to its conclusion, along with the increased availability of life without parole and continuing court challenges to execution methods, have made the ultimate punishment more elusive than at any time since its reinstatement in 1976.

Prosecutors, judges and juries also are being influenced by capital punishment's myriad afflictions: racial and ethnic discrimination, geographic disparities, decades spent on death row and glaring mistakes that have exonerated 155 prisoners in the last 42 years.

Those trends may be squeezing the life out of the death penalty. That doesn't even take into account the added burden of legal clashes, legislative repeals, and problems finding and administering drugs for lethal injections.

The Supreme Court in June upheld a controversial form of lethal injection by the narrowest of margins, thereby giving Oklahoma the green light to reschedule three executions. But courts in many states continue to wrestle with that issue, and the justices have four more death penalty cases on their docket this fall challenging the roles of Kansas juries, Florida judges and Georgia prosecutors.

"The imposition and implementation of the death penalty seems capricious, random, indeed arbitrary,'' Supreme Court Justice Stephen Breyer said in dissenting from the court's June decision allowing the continued use of a problematic sedative for lethal injections. "From a defendant's perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning."

Even in Texas - long home to the most active execution chamber in the country - the death penalty is on the ropes. The state sentenced 48 people to death as recently as 1999. So far this year? Not a single one.

In Colorado last month, jurors couldn't agree on the death penalty for James Holmes, who killed 12 people watching The Dark Knight Rises at an Aurora movie theater three years ago. Their indecision resulted in an automatic sentence of life without parole.

The sobering conclusion reached by Naylor's widow - that the lengthy pursuit of the death penalty wasn't worth the personal sacrifice - illuminates the forces now contributing to a precipitous drop in death sentences across the nation, as well as the declining numbers of those who reach the execution chamber.

Among signs the death penalty may be on life support:

• The number of death sentences dropped from a high of 315 in 1996 to 73 last year – half of them coming in just 2% of the nation's counties.

• The number of prisoners on death row peaked at 3,593 in 2000 but now hovers around 3,000, a 17% decline.

• The number of executions peaked at 98 in 1999 and has dropped since then, hitting a low of 35 last year. In the first eight months of this year, 20 prisoners have been killed — 16 of them in Texas and Missouri.

• Seven states have repealed the death penalty since 2007. Among the 31 that retain it, governors have imposed a moratorium in four, and most others haven't executed anyone in years. Only seven states carried out executions in the past two years.

• The federal government has not carried out an execution since 2003. An unofficial moratorium has been declared pending the completion of a Justice Department review of the death penalty ordered last year by President Obama.

However, the average time spent on death row for those eventually executed continued to rise until 2011, reaching a peak of 16.5 years before dipping to 15.5 years in 2013.

For all the ethical arguments made by death penalty opponents - "abolitionists," in the words of Supreme Court Justice Antonin Scalia — states now are faced with a more practical problem: how to carry out executions.

All states favor lethal injection as the most humane method, but the supply of drugs that can do the job has been drying up because of a confluence of factors. They include: opposition to capital punishment in Europe, where many of the drugs are produced; federal regulations preventing the importation of drugs that don't meet U.S. standards; and recalcitrance by doctors and pharmacists who work to save lives, not end them.

Still, the Supreme Court has twice upheld the constitutionality of lethal injection, first in 2008 and again in June, when the justices ruled 5-4 that Oklahoma can use a sedative involved in three botched executions last year. Justice Samuel Alito, writing for the majority, said challengers could not suggest a better alternative.

The ruling gave impetus to states such as Alabama and Mississippi seeking to jump-start executions after a hiatus of several years. But it also rejuvenated legal efforts by groups opposed to the death penalty, who continue to fight against lethal injection protocols in several states.

Caught in the middle are people like Richard Glossip, Oklahoma prisoner #267303, who lost the Supreme Court case in June and now faces execution this Wednesday at the state penitentiary in McAlester. It's the fourth time a date has been set for his death.

Glossip, twice convicted of masterminding a 1997 murder at the run-down budget motel he managed, still proclaims his innocence. "If they execute me, then I want it to be for a reason," he said during a lengthy phone interview. "What I want to come out of that is that they finally stop executing innocent people in this country."

Several states took the high court's ruling as a reason to rejuvenate the death penalty. Missouri wasted little time resuming executions, putting David Zink to death two weeks later, on July 14. Texas, by far the nation's leader in executions with 528 since the Supreme Court reinstated capital punishment in 1976, followed suit with an execution in August and has six more on tap this year.

States from Alabama to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties. Some states are establishing backup methods in case lethal injections become impossible. Eight permit electrocution, three allow gas chambers, three allow hanging, and two would use firing squads – as Utah did in 2010 and 2013.

The Supreme Court has chipped away at states' freedom to choose the ultimate punishment, first in 2002 by exempting those with intellectual disabilities, then in 2005 by exempting juveniles who were under 18 when they committed their crimes. In the latter case, decided 5-4, Justice Anthony Kennedy said trends against juvenile death penalties in the states had created a "national consensus."

Today, there is a similar consensus: Two-thirds of the states have held no executions since 2010. And the percentage of Americans who favor capital punishment is down from 78% two decades ago to 56% today, according to the Pew Research Center.

"There seems to be a massive reassessment underway in this country in terms of capital punishment," says Kathryn Kase, executive director of the Texas Defender Service, which provides legal aid for those facing death sentences. "Everywhere you look with the death penalty, there's a problem."

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A statistical look at the death penalty in America throughout the years.
USA TODAY

Chapter 1

The long, painful wait for justice

For the past three decades, Gary Painter - a self-described "staunch Republican" - has been the law in Midland County. In a weathered straw hat and snap-button western shirt, the sheriff appears as if drawn from central casting. Blunt-spoken, he is an unwavering supporter of the death penalty. There are people, Painter says, who "need to die'' for their crimes.

Yet he readily concedes that the circuitous journey to the execution chamber needs an overhaul.

"The process has to be shorter, because that alone amounts to cruel and unusual punishment for the victim's family and the person who committed the act," the sheriff says. "That person has to know what punishment he must face.''

Midland County Sheriff Gary Painter(Photo: James Durbin for USA TODAY)

In the past two months, two defendants linked to separate high-profile mass killings in the U.S. eluded death sentences for rampages that claimed a total of 18 lives.

• A Colorado jury was unable to reach a unanimous decision to execute Holmes, who also wounded 70 people in the Aurora shooting, because there was one holdout.

• A Washington state prosecutor withdrew the state's notice to seek death in the murder trial of Michele Anderson, one of two suspects charged in the 2007 slaying of six family members. King County Prosecutor Dan Satterberg acted after a jury could not render a unanimous decision to seek death for Anderson's accomplice, Joseph McEnroe.

Jeff Blackburn, a Texas civil rights attorney, calls the Holmes sentence a "watershed moment for the death penalty.'' Despite serious concerns for the killer's mental state, Blackburn said, the outcome may have been different had Holmes been tried a decade earlier.

In Texas, the number of death sentences declined from 48 in 1999 to 11 last year. That lower level had remained fairly constant since 2006, after state lawmakers approved life without the possibility of parole as an alternative to death in capital cases.

Prosecutors who seek the death penalty often appear to be acting against historical trends. The federal government won a death sentence against Boston Marathon bomber Dzhokhar Tsarnaev in May but hasn't put a prisoner to death in more than a decade.

A South Carolina prosecutor this month said she would seek death for Dylann Roof, who is charged with shooting nine black church worshipers in June, but the state's execution chamber has been dormant since 2011.

In Kansas, a jury has recommended death for white supremacist Frazier Glenn Cross, recently convicted of killing three people outside Jewish sites. A formal sentencing is scheduled for November. A death sentence would seem fruitless: The state has not executed anyone in 50 years.

Oregon prosecutor Joshua Marquis, a vocal proponent of the death penalty, says the prospect of long and costly campaigns to beat back post-conviction appeals has cut the number of death cases filed in the first place. The quality of defense lawyers has been upgraded with the creation of regional defender systems dedicated to death penalty cases.

Those types of improvements have only added to the costs -- and the calendars. A California study in 2008 found the state spent $137 million annually to support the death penalty but would spend only $11.5 million if it was repealed. A Colorado study in 2013 found that death penalty cases took more than five years on average to complete, compared to 1 1/2 years for cases involving life without parole.

"Cases are being bypassed because it's going to take 15 to 20 years on appeal,'' Marquis says. "Do prosecutors consider these things? Absolutely."

Such increased scrutiny has become commonplace in Odessa, just 23 miles west of Midland's modest skyline. In recent years, District Attorney Bobby Bland has seen his share of vicious killings, from the torturous murder of 5-year-old Zachery Dominguez in 2011 to the brutal stabbing deaths of prominent local couple Dick and Peggy Glover at their home just four months later. Both cases were "death eligible," in capital punishment vernacular, but Bland didn't seek it.

Ector County District Attorney Bobby Bland(Photo: James Durbin for USA TODAY)

The prosecutor describes the murder of Dominguez, whose stepfather had subjected him to repeated dunking in scalding water and assaults resulting in a ruptured bowel, as the "most horrible death I've ever seen of a child.'' Yet his concern that Dominguez's siblings could be subjected to painful cross-examinations as witnesses in the case prompted him to offer a deal for life without parole. Ralph Martinez Jr., the mother's boyfriend, readily pleaded guilty.

"I felt that if I could get a plea for life without parole, that would be best for all,'' Bland says.

In the Glover case, Bland had a catalog of damning evidence against James Burwell. His DNA was at the bloody crime scene, the couple's credit card records linked him to purchases made after their deaths, and he was driving their truck when arrested. But Bland also warned the family that it could take years to secure his execution.

Skeet Glover, a death penalty proponent who believed Burwell deserved to die, said it was nevertheless an "easy decision'' to recommend that the prosecutor seek life without parole because other family members expressed concern about the long and likely painful effort.

"It really wasn't difficult to get it done,'' says Glover, seated in the chair once occupied by his father, founder of The Glover Companies, which services the local energy industry. "As a family, we were going to do this together. I couldn't help my dad anymore. I couldn't help (stepmother) Peggy ... and I didn't want to punish anyone else in the family.''

In less than a week in 2012, Burwell was convicted and sentenced to life without parole. "There are no regrets,'' Glover says.

Anthony Ray Hinton wipes away tears upon his release on April 3, 2015, in Birmingham, Ala., after serving 28 years on death row.

(Photo: Bob Farley, European Pressphoto Agency)

Chapter 2

Dead men walking

Anthony Ray Hinton figures he was within a year, maybe two, of being executed.

Hinton was nearing his 30th year on Alabama's death row when the U.S. Supreme Court, in a little-noticed decision last year, granted him a new hearing because of a defense lawyer's mistakes during his 1985 murder trial.

That led to a new review of ballistics evidence used to convict Hinton of two murders half a lifetime ago, when he was 29. Although prosecution witnesses had testified the bullets came from a gun found in Hinton's mother's home, defense experts hired this year found no such connection. The case fell apart, and in April, Hinton was freed.

"Being on death row has taken so much from me as a human being," he says. "I spent 30 years on death row for something I didn't do."

Hinton became the 152nd death row prisoner exonerated since 1973. Many of them are now poster children for the myriad problems cited in June by two Supreme Court justices who questioned the constitutionality of the death penalty.

“Being on death row has taken so much from me as a human being. I spent 30 years on death row for something I didn't do.”

Anthony Ray Hinton

Hinton, who is black, was an apparent victim of racial discrimination. He was convicted in a county known for delivering death sentences, making him a victim of geographic disparities. He spent decades in solitary confinement under threat of execution, a cruel and unusual punishment in the eyes of the two justices. And ultimately, the prosecution admitted it no longer had a case.

"If this court had not ordered that Anthony Ray Hinton receive further hearings in state court, he may well have been executed rather than exonerated," Breyer wrote in dissent from the high court's decision upholding a controversial form of lethal injection. Instead, Hinton will be welcomed back into his mother's renovated home during an open house next week, thanks to donations from the likes of Starbucks' Howard Schultz and his family foundation.

Of all the arguments against capital punishment, none is as powerful as the risk of executing the innocent. Yet research shows about 4% of prisoners sentenced to death are just that.

They're also locked away for ever longer terms before their innocence is determined. The 12 men exonerated in 2014-15 served a combined 322 years in prison, an average of nearly 27 years. Seven of them, like Hinton, had served 30 years or more. Nine of them were black.

Several condemned men recently exonerated from death row bring to life the issues raised in Breyer's dissent:

• Henry Lee McCollum was a black teenager with an intellectual disability when he was convicted of raping and murdering an 11-year-old girl in North Carolina. He spent 30 years in prison before DNA found on a cigarette butt led to his exoneration. Earlier this month, he won $750,000 in compensation from a state commission. "I represented him for 20 years and could not get anyone's attention," says Ken Rose, senior staff attorney at the Center for Death Penalty Litigation in Durham. "It is the most frustrating experience to know that you might have an innocent client and that there's nothing you can do about it."

• Ricky Jackson served 39 years in prison for murder in Ohio based on the false testimony of a 12-year-old boy. He holds the record for time in prison before being exonerated, though his death sentence eventually was commuted to life without parole. "If Ricky's sentence had not been commuted, he already would have been executed by the time we proved his innocence," says Brian Howe, one of his lawyers at the Ohio Innocence Project. "There's a very good chance that he would not have lasted that long on death row, and no one today would have known what happened."

• Glenn Ford languished on death row for nearly 30 years in Caddo Parish, Louisiana - home to half the death sentences rendered in the state - after inexperienced lawyers couldn't convince an all-white jury in 1984 that he did not murder a Shreveport jeweler. His exoneration produced an extraordinary mea culpa from one of the prosecutors, A.M. "Marty" Stroud. "At the time this case was tried, there was evidence that would have cleared Glenn Ford," Stroud wrote in The Times of Shreveport. "I apologize to Glenn Ford for all the misery I have caused him and his family." After 15 months of freedom, Ford died of lung cancer on June 29, the same day the Supreme Court upheld lethal injection.

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Former prosecutor Marty Stroud is calling for the abolishment of the death penalty. Stroud was the lead attorney in the 1984 murder trial of Glenn Ford. Ford spent almost 30 years behind bars for a murder he didn't commit.
VPC

In addition to the death row prisoners still claiming innocence, some apparently innocent people have been put to death. Among those Breyer cited were two Texas men: Carlos DeLuna, executed in 1989 for stabbing to death a single mother, and Cameron Todd Willingham, executed in 2004 for killing his three young children in an arson fire.

Hinton's conviction in 1985 hinged on flawed forensic evidence tying an old .38 revolver found under a mattress in his mother's house to bullets that killed two restaurant assistant managers in separate incidents.

It also pointed up basic problems in the criminal justice system, particularly for poor black men. "He was convicted because he didn't have the money to get the expert assistance he needed at trial," says Bryan Stevenson, his new lawyer at the Equal Justice Initiative, an Alabama non-profit that provides legal aid to indigent defenders and prisoners.

Hinton believes the situation is worse in Alabama than elsewhere because judges who must run for election tout their support for capital punishment - a concern cited in 2013 by Supreme Court Justice Sonia Sotomayor. State courts refused to grant him the hearing later ordered by the Supreme Court.

"The judges on the United States Supreme Court do not have to be re-elected," Hinton says. "The judges in Alabama have to be re-elected every four years or six years."

The gurney in the execution chamber at the Oklahoma State Penitentiary in McAlester, Okla.

(Photo: Sue Ogrocki, AP)

Chapter 3

Lethal injection on trial

Capital punishment by lethal injection has been upheld twice in seven years by the highest court in the land, but it's still a bone of contention in places like Davidson County Chancery Court. For the better part of a month after the Supreme Court's most recent decision, lawyers for more than 30 death-row inmates in Tennessee argued that its execution protocol is unconstitutional.

Their legal challenge - similar to others in Florida, Alabama, Mississippi, Montana and elsewhere - illustrates the difficulty still faced by many states seeking to carry out executions in the wake of the high court's ruling.

Bottles of the sedative midazolam are displayed at a hospital pharmacy in Oklahoma City.(Photo: Sue Ogrocki, AP)

Despite the justices' imprimatur, their narrow 5-4 ruling that "the Constitution does not require the avoidance of all risk of pain" was hardly a vote of confidence for lethal injection, the preferred method for all states with an active death penalty – itself a dwindling number.

Oklahoma, whose use of the sedative midazolam was challenged by three death row inmates, immediately declared victory and set September and October execution dates for Glossip, Benjamin Cole and John Grant.

But Glossip, facing death on Wednesday, has two sets of lawyers still battling on separate fronts and continues to assert his innocence in what prosecutors and jurors concluded was a 1997 murder-for-hire at the motel he managed in Oklahoma City. The man who beat motel owner Barry Van Treese to death with a baseball bat, Justin Sneed, avoided the death penalty by fingering Glossip as the mastermind.

Glossip's contention has won support from the likes of British business executive Richard Branson, actress Susan Sarandon and TV's "Dr. Phil" McGraw. More than 250,000 online petitions seeking a 60-day reprieve were delivered to Gov. Mary Fallin this month. On Friday, former U.S. senator Tom Coburn and former University of Oklahoma head football coach Barry Switzer added their names.

"We ... don't know for sure whether Richard Glossip is innocent or guilty. That is precisely the problem," Coburn and Switzer said in a letter co-signed by others. "If we keep executing defendants in cases like this, where the evidence of guilt is tenuous and untrustworthy, we will keep killing innocent people."

Van Treese's family issued a statement to the Tulsa World contending that the criminal justice system has run its course. "Execution of Richard Glossip will not bring Barry back or lessen the empty hole left in the lives of those who loved Barry," the statement said. "What it does provide is a sense that justice has been served."

From his cell on death row, Glossip remains upbeat. "If you're innocent, you can't just lay back and let them execute you," he says. "You've got to speak out. You've got to raise hell."

Robert Dunham, executive director of the Death Penalty Information Center, which opposes capital punishment, says Glossip's case "has numerous hallmarks of innocence cases." If he's executed, Dunham says, Glossip "would fall in the category of people whom states have killed despite significant doubts as to their guilt."

“If you're innocent, you can't just lay back and let them execute you. You've got to speak out. You've got to raise hell.”

Richard Glossip

Glossip's legal battle is not unique. In Florida, more than 400 death row inmates are awaiting a state Supreme Court ruling on the pending execution of Jerry Correll, who murdered four women 30 years ago, following a lower court's approval of the planned drug protocol. In Alabama, seven prisoners challenging the state's lethal injection protocol are battling in federal district court; the state argues that its three-drug protocol is "virtually identical" to the one upheld by the Supreme Court.

A federal judge in Mississippi last month temporarily blocked lethal injections after two of the state's 48 death row inmates protested it would be "chemical torture." Even in Lewis and Clark County, Montana, court proceedings continued through the summer in a case that dates back seven years and several lethal injection methods. The state's death row population: two.

The cross-country battle over lethal injection methods has taken on added importance since last year, when inmates in Ohio, Oklahoma and Arizona gasped, moaned or writhed in pain during the administration of a three-drug cocktail including the sedative midazolam. But other protocols have come under attack as well.

"It can be quite a horrendous death," says Ron Waterman, an attorney challenging Montana's use of the drug pentobarbital.

The situation is similarly uncertain in other states - particularly those that use midazolam, the sedative at issue in the Oklahoma case. Although Florida has used it with apparent success since 2013, critics claim it doesn't mask the pain of paralytic and heart-stopping drugs that follow.

In Ohio, Gov. John Kasich - now one of 16 Republicans seeking his party's nomination for president - postponed all scheduled executions until 2016 after a prisoner there snorted through a 26-minute execution. Arizona, where a prisoner gasped for nearly two hours on the gurney last July, has been seeking alternatives to its drug cocktail.

"The cat is out of the bag on midazolam, regardless of what the Supreme Court says," maintains Deborah Denno, a law professor at Fordham University. "The departments of corrections recognize that this is a problem drug. ... No one wants to be the next one that has a botched execution."

The debate over lethal injection has energized legislatures as well as courts and corrections departments. North Carolina and Arkansas, two Southern states seeking to rejuvenate their dormant death penalties, approved laws this year that impose secrecy on the source of lethal injection drugs. Arkansas recently purchased a new supply of drugs.

The problem for the legal system is that it's more of a medical issue. Some drugs, such as sodium thiopental and pentobarbital, no longer can be obtained from European drug makers. That has sent states scurrying to compounding pharmacists, where the drugs they get are not subject to Food and Drug Administration regulation.

This June 18, 2010, file photo shows the firing squad execution chamber at the Utah State Prison in Draper, Utah.(Photo: Trent Nelson, AP)

But those pharmacists aren't pleased. Its trade group in March discouraged members from "participating in the preparation, dispensing or distribution of compounded medications for use in legally authorized executions." A week later, the American Pharmacists Association called executions "fundamentally contrary to the role of pharmacists as providers of health care."

In Tennessee, Davidson County Chancellor Claudia Bonnyman ultimately ruled late last month that the state's use of compounded pentobarbital is constitutional. "This court cannot find that the possibility of an accident … causes the protocol to violate the Eighth Amendment prohibition against cruel and unusual punishment," she said. An appeal is likely.

Some states, meanwhile, are hedging their bets by establishing backup methods. Tennessee last year approved the use of the electric chair if lethal injection drugs are unavailable - a method Virginia used as recently as 2013. In March, Utah opted for the firing squad. In April, Oklahoma selected nitrogen gas.

Chapter 4

States, courts confront new death challenges

From Connecticut to California, the death penalty is on trial in state and federal courts. From Delaware to Nebraska and from New Hampshire to Montana, it's on trial in state legislatures.

The continuing court clashes illustrate that the debate is far from over. But the continuing legislative clashes showcase a clear trend in favor of retreat or repeal: No states are seeking to reinstate the death penalty.

"The Eighth Amendment forbids punishments that are cruel and unusual," Breyer said in his dissent in June. "In the last two decades, the imposition and implementation of the death penalty have increasingly become unusual."

Governors have declared moratoriums in Pennsylvania, Colorado, Oregon and Washington. In Ohio, all executions have been pushed back at least until next year. State legislators who came within a vote of repealing the death penalty this year in Delaware, New Hampshire and Montana are sure to try again.

Just last month, Connecticut's Supreme Court struck down the death penalty for prisoners already convicted of their crimes, going beyond the legislature's prospective repeal.

And on the last day of August, a federal appeals court in California heard oral arguments in a case that ultimately could reach the Supreme Court.

Now housing roughly 25% of the nation's 3,000 death row prisoners, the state cannot pay enough defense lawyers or settle on a lethal injection method, even as the population at San Quentin continues to grow. The death penalty was narrowly upheld in a 2012 referendum, but attorneys for convicted murderer Ernest Jones noted that only 13 of more than 900 people sentenced to death since 1978 have been executed. The majority will die in prison or spend decades fighting their convictions.

"There has been an extreme malfunction in California's death penalty process," Michael Laurence, the lead defense lawyer, told the three-judge panel on Aug. 31. "The average time it takes from start to finish in the state courts exceeds 20 years."

Mike Cavanaugh collects a signature from a resident for a petition drive that seeks to put the death penalty question on the 2016 ballot on July 7, 2015, in Omaha, Neb.(Photo: Nati Harnik, AP)

Nebraska this year became the first "red" state to ban capital punishment. That law faces potential repeal in 2016 if death penalty proponents can put it to a vote.

The attention Nebraska received overshadowed near-misses in Delaware, where Rep. Sean Lynn says the death penalty is applied in discriminatory fashion, and Montana, where Rep. David Moore says the costs are proving to be unaffordable.

In New Hampshire, where the Senate deadlocked 12-12 on a repeal bill in April, Rep. Renny Cushing is an unlikely proponent of abolition. His father and brother-in-law were murdered in separate incidents, 23 years and a thousand miles apart. Still, he says death sentences just divert attention from where it's most needed.

"The entire death penalty debate is really offender-centered," Cushing says. "It makes rock stars out of killers. It allows us in many ways to ignore or not tend to the needs of individual victims' survivors."

As capital punishment disappears from courtrooms and statehouses, the Supreme Court maintains a steady diet of death penalty cases. On Oct. 7, the day one of Glossip's co-defendants is slated to die, the justices will hear the first of four such cases on their 2015 docket.

The most prominent of those cases, to be argued Nov. 2, involves Timothy Tyrone Foster's allegation that the prosecution in his May 1987 trial in Rome, Ga., illegally struck four potential jurors because they were black. That produced an all-white jury, in apparent violation of the court's ruling a year earlier in Batson v. Kentucky that peremptory challenges during jury selection can't be based on race.

Jack Leason, 19, of Wellington, New Zealand, left, attends a protest against the death penalty outside of the Supreme Court in Washington, on June 29, 2015.(Photo: Jacquelyn Martin, AP)

It took Foster's jury all of 90 minutes to convict him for killing a retired white female teacher, and about an hour to deliver his death sentence after hearing the prosecutor urge them to "deter other people out there in the projects."

Prosecutors claimed their jury strikes were for race-neutral reasons. But since then, defense lawyers obtained the prosecution's notes, showing that they singled out prospective black jurors with a "B," circled the word "black," identified them with shorthand such as "B#1" and "B#2," and ranked them in case "it comes down to having to pick one of the black jurors."

A new study by the anti-death penalty group Reprieve Australia showed that prosecutors in Caddo Parish, Louisiana, struck would-be black jurors 46% of the time, compared to 15% for others. And that mattered: In 200 verdicts from 2003-12, juries with fewer than three blacks did not acquit any defendants. When five or more blacks participated, the acquittal rate was 19%.

Stephen Bright, Foster's lawyer at the Southern Center for Human Rights, says the upcoming Supreme Court case illustrates two of Justice Breyer's many concerns: racial discrimination and decades spent on death row.

"If this case gets reversed," Bright says, "it will be back to Rome 30 years after the conviction … starting all over again."